Tuesday, June 30, 2009

The title of this post is the headline over a USA Today article published today voicing criticisms of Fort Bend County Sheriff's Deputy Keith Pikett's use of bloodhounds to conduct "scent lineups," which have led to false accusations in two recent cases including one that resulted in a DNA exoneration. According to USA Today:

Two federal lawsuits are casting a harsh spotlight on an investigative tool long beloved by American law enforcement: a bloodhound's nose.

Lawsuits filed in Victoria, Texas, allege that Fort Bend County Sheriff's Deputy Keith Pikett and his team of hounds — James Bond, Quincy and Clue — failed controversial sniff tests known as "scent lineups."

Much like in traditional lineups, the dogs link human scents left at crime scenes to samples from suspects.

In each case, the suits allege, Pikett's dogs called attention to the wrong person. Both former suspects have been cleared. ...

Defense lawyers say the technique smacks of forensic voodoo and casts further suspicion on the broader use of scent dog evidence.

"It's a fraud on so many levels," says Jeffrey Weiner, former president of the National Association of Criminal Defense Lawyers.

Since 2004, two men in Florida and one in California have been freed after DNA evidence exonerated them. They had been convicted, in part, on the use of scent evidence, according to the Innocence Project, which uses DNA to exonerate the wrongly convicted. Pikett's dogs weren't involved in those cases.

National Police Bloodhound Association spokesman Dennis Guzlas says the association urges that scent lineups be used with caution.

What is the error rate for the dogs' identifications, since we know it's not zero? Do the scent lineups utilize "blind" administration or is Pikett inadvertently tipping the dogs off who to pick? And has there been anyone convicted based on evidence from Pikett's dogs alone? If so, there might be some valid innocence claims looming out there among the 2,000 cases Pikett claims his dogs have worked. Dog sniffs aren't exceptionally reliable in other venues so I'm not sure why they'd be taken as gospel here, particularly in the face of a DNA exoneration proving the dogs and the deputy were wrong. How many other, similar errors have they made that nobody caught?

So far, three people have been cleared after collectively spending more than 50 years in prison, all of whom were convicted primarily due to the dog's alerts, despite other evidence exculpating them. Florida criminal justice activists say there may be as 60 more people wrongly convicted thanks to [Officer] Preston and his dog.

Results from three new surveys by the Urban Institute provide a lot of new detail and analysis regarding barriers to successful reentry for prisoners returning from TDCJ to Houston. See their recent reports:

To point out just a handful of notable survey-based findings from the longitudinal study of returning male prisoners:

In terms of supporting themselves financially, men left prison with thousands of dollars of debt, and many faced challenges in seeking employment due to lack of photo identification and the existence of a criminal record. Despite these challenges, three out of five men were employed by eight to ten months out, and most of them reported that their employer was aware of their criminal record.

Overall, "the strongest predictor of employment success over time was avoidance of drug use early after release."

I was also interested to learn that, at least according this survey, most offenders were gainfully employed before they went in

The majority (69 percent) of men reported legal employment in the six months before entering prison or jail. Nevertheless, nearly a third (29 percent) reported receiving some income from illegal activity in the six months before incarceration, and 18 percent received most or all of their income from illegal activity during this time.

The survey also found a marked disparity in recidivism rates between state jail felons and prisoners in TDCJ's institutional division:

An important thread that runs through all of these findings is that of the striking difference in the reentry challenges, experiences, and outcomes between men released from state prisons and those released from state jails. In Texas, convicted felons sentenced to two or more years in prison are housed in state prisons, while lower-level offenders serve time in state jails, which primarily house drug and property offenders and probation violators. Men exiting from state jails have more extensive histories of substance use, are less likely to have received programming of any kind either before or after release, and are more likely to engage in postrelease substance use. Despite these deficits, state jail releasees are less likely to be returned to confinement in a year’s time, possibly because unlike those exiting prison, they are not under any form of postrelease supervision that might serve to detect violations or new crimes.

The first night out of prison can become a key stumbling block to successful reentry for prisoners without family support or a home to go to, particularly among returning state jail felons:

Unfortunately, the men interviewed for this study had few resources with which to navigate the challenges they faced during the first few hours after their release. Many men (73 percent) had only one set of street clothing, and fewer than two in five (37 percent) had a non-TDCJ photo identification at the time of release. Men exiting state prison left with $50 in gate money, while those exiting state jails were not provided with any cash assistance, relying instead on whatever funds they had in their prison accounts. The typical exiting prisoner had just $7 in account funds, and the average state jail inmate had $18 in account funds.

The first challenge faced by many men following their release was transportation. While exactly half of men had someone to meet them at the time of their release, the other half left the facility alone. Just over half (54 percent) reported that they had been given a bus ticket, voucher, or money for transportation on the day of their release, and roughly one in four (28 percent) traveled away from the facility by bus.

Another immediate challenge was finding a place to sleep. Figure 3 shows where former prisoners and state jail inmates slept on the first night after release. While the majority (60 percent) stayed in a family member’s home, about one in four stayed in their own home. Those exiting state jail, however, were much more likely to have spent their first night in some form of temporary housing, such as a motel, boarding house, shelter, halfway house, or treatment facility (13 percent of state jail releasees versus 4 percent of state prisoners).

Seldom heard in discussions about recidivism is how much money many inmates owe when they get out of the state lockup, and how that debt burden can hinder their ability to get back on their feet, particularly (if, to me, somewhat inexplicably) for state jail felons:

The men in this study left prison with many financial obligations, both new and old. Most (62 percent) owed at least one form of debt at the time of release, and all faced challenges in meeting their basic needs—including housing, food, clothing, and transportation. On average, state prisoners owed about $643 and state jail inmates owed about $3,000 in the first few months after release. By eight to ten months out, the average debt had increased to $900 for state prisoners and $8,254 for state jail inmates. These debts included fines, restitution, court costs, supervision fees, and child support, with the latter two being the most common forms of debt owed.

I don't understand why debts for state jail felons would be so much higher than those coming out of regular prisons. More must be going on there than meets they eye.

Finally, and quite remarkably, family support was identified the biggest factor predicting successful reentry, contrary to offenders' expectations when they left prison:

When asked shortly before release which factors would be important in keeping them out of prison, men cited employment and housing more frequently than family support. However, when asked at eight to ten months after release which factor had been most important in keeping them out of prison, men were more likely to choose family support than any other factor

I think it's often assumed that inmates come from dysfunctional families and that returning to that environment may actually contribute to recidivism. But these data indicate that maintaining family ties offers the best chance for ex-prisoners to succeed, making inmates' families a key, under-appreciated and underutilized resource for preventing future crimes by former prisoners.

R.J. MacReady over at the Texas Court of Criminal Appeals blog analyzes possible implications for Texas from last week's Melendez-Diaz ruling by SCOTUS. Though Scalia expressly cited Texas' statute on confrontation of lab experts as an example of state law that already complied with the new ruling, MacReady thinks Melendez-Diaz could result in a change to how Texas courts view confrontation in cases involving business records and parole revocation certificates:

Scalia also goes into talk about business records, and this portion of he opinion may be a little more than cosmetic. Here, Scalia makes clear that business records that satisfy the hearsay definition of a business record aren't necessarily immune from a Confrontation Clause objection, either. This may come as a shock to Judge Keasler who concurred in Smith v. Texas that business records are not testimonial under Crawford. According to Scalia, business records that are kept in the normal course of business may not violate Crawford, but we have to look at whether the regularly conducted business activity is production of evidence for use at trial. Scalia notes that an accident report prepared by an employee of a railroad company did not qualify as a business record because it was calculated for use essentially in the courts, not in the business. Palmer v. Hoffman, 318 U.S. 109 (1943). ...

For some more concrete speculation (yet another paradox), I did immediately ponder the ramification of the jail infraction records at issue in Smith v. State (cited above) and Russeau v. State and the parole revocation certificates in Segundo v. State when I read this opinion. Clearly, this portion of the opinion vindicates the results in Smith and Russeau, namely that narratives contained in jail records are testimonial. But the CCA reached that result by drawing a distinction between a subjective interpretation facts and a sterile recitation of the facts. In Segundo, the parole revocation certificates did not violate Crawford because they contained sterile recitations of the fact of revocation rather than a detailed description of the cause. Upon reading this opinion, it's arguable that this "sterile recitation of the facts" paradigm could be seen as another attempt to impose the same reliability standard that the majority rejects in Melendez-Diaz. The flip side of this argument is that the more sterile record notations are found in records that are not prepared in anticipation for trial, but necessary notations so that the jailers who have access to these records and the administrators that make housing decisions need to rely upon them when moving prisoners from place to place. I don't know. I'm just going off the dome. [As a side note, Scalia does mention in footnote 2 that medical reports created for treatment purposes would not be testimonial under the decision in this case.] But I will be interested to see how these type of evidence is considered going forward.

Still, the thing to remember is that this case only dealt with drug lab results and SCOTUS pretty much endorsed the Texas statutory notice-and-demand scheme for drug analysis. For you legislative history buffs, this statute was so cleverly suggested by the prescient Jay Johannes of the Colorado County Attorney's Office, drafted (the first draft anyway) by Ken Sparks the Colorado County Attorney, and sponsored by House Rep. Debbie Riddle. They're the ones that crafted the legislation, and their foresight may have shielded Texas from another Apprendi-like storm.

More problematically for the State, the majority has indicated that not all business records are going to be immune to a Confrontation Clause challenge and courts will need to look to whether the records are prepared for business or for trial. Justice Kennedy fears that lack of a clear definition of what witnesses we're talking about could grind the criminal justice system to a halt. I'm sure it won't, but we'll have to wait a little for the smoke to clear so we can look through the rubble.

Judging by Scalia's distinction on business records - whether the document was prepared specifically for use in court - I'd agree with MacReady that the CCA's conclusion about parole revocation certificates being non-testimonial seems highly suspect. Given that Texas' statutes on lab reports already complied with confrontation requirements, that could turn out to be the most important new implication of Melendez-Diaz for the Lone Star State.See related Grits posts:

In Grayson County last year, officials were enamored of the idea that they could expand their local jail without taxpayers "footing the bill" if they built it out much larger than necessary, allowed a private company to operate it, and leased out empty space to the Department of Criminal Justice. But with the jail building decision drawing near, TDCJ's population is down and they're not leasing as many beds from counties as they have in the past. Reported KTEN-TV ("Less inmates in Texas, more trouble for Grayson County jail," June 29):

Over the past few months commissioners have discussed privatizing the jail to reduce costs.

They hope building a larger facility will allow them to house more inmates from across the state and that the fee per inmate will be less than what their paying now. On the other hand, the Texas Department of Criminal Justice says the number of inmates in has fallen, which would lead some to believe a new, larger jail in Grayson County may be sitting empty, yet county Judge Drue Bynum says he not worried.

"Their feasibly study came back and said in the next 20 years we would need a facility that would hold between 720 and 750 people, so we were making our decision based on the jail commission feasibility study that we just engaged."

The new jail is slated to be built near the corner of Frisco Road and Graystone on the Northeast side of Sherman.

The company now being considered is Southwest Corrections. They hope to run a new 750 bed jail here.

I'd identified this issue when Grayson first proposed the idea of overbuilding and privatizing its jail, writing that "if the company can't find other entities willing to lease the beds at an inflated price, the county will be stuck with the full tab for space it doesn't need." Now on the eve of the county's vote on the project next month, that possibility appears less remote than when the economy was booming.

Judge Bynum now says it's no big deal if they can't lease the extra space, but as a practical matter, this new development sure seems to put a dent in the county's financing scheme. After all, he pitched the privatization idea saying it would mean taxpayers won't "foot the bill for the jail." They were operating under the assumption that profiteering off extra incarceration would pay for the county's baseline jail needs, but now, in the midst of a recession and with state inmate numbers falling, that strategy appears less viable.

Monday, June 29, 2009

Though much positive legislation died in the 81st Texas Legislature's closing days, I never went through the good criminal justice legislation that did finally pass and become law this year. This isn't a comprehensive list; let me know what I missed in the comments:

Eliminating LWOP for juvenilesPerhaps the bill passed with the most significant national implications was SB 839 by Hinojosa eliminating life without parole as a sentencing option for juveniles, substituting a 40 year minimum for juveniles convicted in capital cases.

Compensating the falsely convictedThe Texas Legislature this year approved and the Governor signed into law an expanded compensation package for innocent people who've been falsely convicted (HB 1736 by Anchia/Ellis), a bill I lobbied for on behalf of the Innocence Project of Texas. Under the new statute, falsely convicted defendants may receive $80,000 per year incarcerated plus a like amount stretched out over a lifetime annuity. Meanwhile, SB 1847 by Hegar ensures that wrongfully convicted inmates released from prison aren't denied the same reentry services (see HBs 1711, 2161, below) given to actual offenders.

Restoring inmate 'good time'Though it's no longer the case that prisoners are released when their "good time" plus "time served" equals their sentence, HB 93 by Hodge/Hinojosa, authorized the Department of Criminal Justice to reintate "good time" taken away for disciplinary purposes, authority TDCJ wanted as an added tool for managing prisoner behavior.

Prisoner access to booksA new law made it easier for volunteer organizations to send books to TDCJ inmates by mail. Previously inmates could only receive books directly from the publisher. TDCJ will be adopting rules soon to implement the new policy.

Improving reentry prospectsAnother good bill was HB 1711 requiring TDCJ to create reentry and reintegration plans for offenders released from TDCJ and establishing a multi-agency task force to coordinate reentry services. The conference committee went with language in the House version of the bill, described in this House Research Organization report (pdf).

Securing drivers licenses for ex-offendersHB 2161 was an important reentry bill requiring TDCJ and DPS to coordinate to ensure that offenders leaving Texas prisons can get street-legal ID. According to the HRO, the bill would "require DPS to accept an offender ID card or similar from of identification issued to an inmate by the TDCJ as satisfactory proof of identification to receive a personal identification certificate" after DPS has had an opportunity, before the person leaves prison, to verify their identity. This is a big deal because DPS has historically refused to accept TDCJ ID cards as valid ID, making reentry in the immediate days after a convict's release from prison especially, needlessly difficult.

Temporary reentry housing authorizedAnother boon to reentry was the authorization in HB 3226 by Madden/Seliger for TDCJ to pay for temporary housing for parolees who meet all other parole requirements but need a place to stay. TDCJ must create rules that control the payments which are generally authorized for parole-approved inmates if it costs less than what would be incurred incarcerating them.

Huntsville no longer sole point of TDCJ departureAs gas prices start to go up again, TDCJ should save significant money releasing offenders from the facility where they're housed or from "regional release centers" instead of processing everyone out through Huntsville after passage of HB 2289 by Madden/Whitmire.

Indigency program for 'driver responsibility' messAn amendment to the DPS Sunset bill requires the Department of Public Safety to establish an indigency program for its driver responsibility fee and establish rules to govern the process. The fee, which is quite high and stretches out over a three-year span, presently has about a 70% nonpayment rate.

Those were the main highlights on my own radar screen. Let me know what other good stuff passed this year that you were happy about.

MORE: New Office of Capital Writs. An astute commenter points out I failed to mention SB 1091 creating a new capital writs office to handle indigent habeas appeals in death penalty cases. According to the House Research Organization report (pdf) on the bill:

SB 1091 would create the Office of Capital Writs to provide legal representation for indigent capital murder defendants who were sentenced to death and were appointed counsel for a writ of habeas corpus. Courts would have to appoint the office to represent indigent capital defendants for habeas writs unless specific conditions in the bill were met.

The bill would repeal the current duty of the Court of Criminal Appeals to adopt rules for the appointment of attorneys for the indigent for habeas corpus writs. ...

The office would be allowed to represent defendants in death penalty cases only in proceedings for state writs of habeas corpus, legal motions related to preparing a habeas petition, and other state post-conviction matters other than a direct appeal. The office could not represent a defendant in a federal habeas review.

Finally, a new judge has been appointed in the TYC sex-abuse cases out of the West Texas State School, so we can likely expect a trial date to be set sooner than later. The state had been ready since last year but the district judge in Ward County had refused to set a trial date. Reported AP:

An Odessa judge is now handling the cases against two former West Texas youth prison officials accused of repeatedly sexually abusing teenage inmates.

Court records show District Judge Jay Gibson was appointed Thursday to the case against John Paul Hernandez and Ray Brookins, both former administrators at a Texas Youth Commission jail in Pyote.

Threats and punishments from authority figures only go so far when dealing with rebellious teens, but in Corpus Christi, officials believe they can ramp up penalties high enough for graffiti to scare youth away from the behavior. So far, though, git-tuff policies have had exactly the opposite effect.

It reminds me of the bromide that only crazy people do the same thing over and over again expecting a different result.

Corpus Christi city officials (not to mention local judges and prosecutors) inarguably have taken the harshest stances in the state against graffiti, focusing large amounts of police resources on the problem and fairly routinely seeking felony penalties (a felony can be charged for any graffiti on school and churches or when there's $1,500 worth of damage or more) that have sent graff writers to state prison.

Political discourse in Corpus regarding graffiti has gotten absurdly over the top. Indeed, to judge by local rhetoric, many of its citizens seem to think it's a bigger worry than Mexican drug cartels or violent crime.

Take a look at the truculent reader comments following a recent story in the Caller Times about a repeat tagger's latest felony graffiti arrest: "Next time he's caught tagging, someone please shoot him," one reader suggested. Another chimed in, "Great, my taxes will pay for this idiot's food and board for the next two years? Can I just buy a box of bullets instead and save us all some money?" Five out of 40 commenters expressed gloating pleasure at the notion the 19-year old might be sexually assaulted in prison.

Such comments typify a mounting public sentiment (or perhaps more accurately, a "mob mentality") in Corpus developing for the last 2-3 years about graffiti, with rhetoric and draconian proposals coming from that city's leaders that make the rest of the state look like spray paint loving hippies.

Perhaps it's not too great a stretch to wonder if some of these comments might indicate a form of localized mass hysteria, which research has shown "often occur[s] where people find themselves in an intolerable situation that they're not able to influence or otherwise complain about." That description perfectly fits the situation property owners find themselves in, particularly since many municipal laws actually punish the victims of graffiti crimes.

But ironically, the more Corpus Christi pursued a John-Wayne-style, tuffer-than-thou, enforcement-only approach, something counterintuitive happened: Playing cat and mouse with young punks empowered and emboldened them within their outcast subculture. As a result, the city's tagging problem worsened instead of improved. Most of Corpus Christi's tagging isn't gang-related, but rather comes from competing youth tagging crews ensconced in oppositional hip-hop or skateboarding cultures. So rather than scaring them away from the activity, Corpus Christi's approach played right into their cultural predispositions by confirming, in real life, that their penny-ante activities qualify as gangsta.

As a result, after bringing down the full force of its criminal justice apparatus on graff writing only worsened the problem, now the city will try its luck in the civil courts. The Corpus City Council is now considering whether to launch civil suits against parents of graff-writing teens, a proposal being copied from Los Angeles (where obviously they've got the graffiti problem completely solved - let's definitely mimic their approach!).

But of course, authorities never catch the perpetrators in the vast majority of graffiti incidents, and the parents' inability to contain their kid is how we got to this point in the first place. Maybe some just didn't try, but I'll bet more frequently when you find a teen getting in trouble repeatedly for graff, you'll also find a frustrated parent who's at the end of their rope. Suing already-embattled parents doesn't seem like the way to go; it's a symbolic but not a substantive response.

There are only a relative handful of people engaged in tagging in Corpus and the cops know who at least a signficant plurality of them are. But the city's relationship with these youth is entirely oppositional, playing directly into the dynamic that drew them to tagging in the first place. In reality, because police and prison resources are limited, cities can't win the enforcement-only game. Youth with a burning desire to write on the walls will do so, which is why I've frequently suggested giving them at least some approved spaces for the purpose.

If we want youth to stop doing graffiti, harsh enforcement empirically won't do the trick by itself or else Corpus Christi by now would be graffiti free. Stopping graf additionally requires developing a deeper understanding of why youth are doing it in the first place and providing them with alternative outlets for destructive energy. That's where Corpus and many other cities have failed.

I recall a remarkable story published in the Washington Post a couple of years ago about local officials' reaction to a graffiti problem in Jiddah, Saudi Arabia,

Abo-Umara, 45, said young men like Alwani should not be held accountable until officials are sure they've done right by local youth.

"What have we done for young people? Have we asked them what they need or want?" said Abo-Umara, wearing a flowing white head scarf and long robe. "Until I talk to them and find out why they are scribbling all over Jiddah and do my part in offering them the services we're supposed to provide, then I can't punish or criticize them."

True to his word, Abo-Umara held a two-day workshop called "What Do Youth Want From Jiddah?" in July, shortly after his meeting with Alwani. More than 200 young men and women attended, on separate days, and their list of demands included cinemas, public libraries, and music and art centers.

The young women asked for private beaches for women and girls, for at least widows and divorced women to be permitted to drive, and for boys who harass them to be fined.

Both groups requested sports facilities, of which there are very few in Saudi Arabia.

Abo-Umara was able to implement one demand immediately: walls dedicated to graffiti.

While street art is a fresh, interesting language, it should not be mistaken for the language of knowledge or power. Instead it is the language of a city that is weak and divided. We must hear what graffiti says to us as a society, and retake our physical urban character as a common, broad place that offers security, sacred, and special places for all citizens, not just the privileged few ... By ignoring graffiti art, we postpone our treatment of the urban malaise. By confronting it and bringing it into the mainstream, we can better treat our urban condition and improve the city as a dwelling place for the benefit of all.

I realize that by suggesting we need an "understanding" of why young people break the law, I'm opening myself up to stereotyping as a "liberal" who just wants to hand the criminals a teddy bear and send them on their way. (Untrue, but by now I'm used to it.) The fact is, though, that Corpus has been pursuing the tuffest criminal enforcement tactics in the state on graffiti and by all accounts the policy has miserably failed, which is why the focus is now shifting to the civil courts. If folks actually want to solve the problem instead of just complaining about it (something I often think may not be the case), at the end of the day different tactics will be required.

For example, most prosecutions for graffiti in Corpus Christi are juveniles. But are youth getting adequate opportunities to pursue art in school, or has art class been de-prioritized in favor of the TAKS test, as has been the case in much of the rest of the state?

Grieved property owners notoriously (and understandably) aren't interested in listening to what graffiti writers have to say, but IMO that's a prerequisite for finding a satisfactory way to reduce the problem in the long-term. (Graff can only ever be managed; it's not practically possible to 100% end the practice, which dates to ancient times). I understand why folks in Corpus are angry, though I cannot justify the hysteric vitriol in the most extreme examples above. But anger won't help nearly as much as just buying a second graffiti cleanup truck and investing in local opportunities for youth as an alternative to merely prosecuting them.

Sunday, June 28, 2009

Texas prison officials plan to cancel contracts to house up to 1,900 state convicts in county lockups because the number of inmates in state prisons has fallen.

Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, told the Austin American-Statesman that officials plan to move the convicts now housed in county lockups back into state prisons by the end of August. Lawmakers, who directed the move, anticipated the population decline and did not appropriate $28 million to continue leasing the contract beds.

The decrease in state inmates — part of a national trend — coincides with an increase in correctional officers at the state’s 112 adult prisons. The vacancy rate for prison guards has dropped to about 5 percent, the lowest in more than a decade for a state that has long had a shortage of prison guards.

Texas has just 1,262 correctional officer jobs now open, compared with more than 3,700 just over a year ago. Officials say more people have become guards because of pay incentives and the struggling economy.

"It’s the economy. No doubt about it," said state Sen. John Whitmire, D-Houston. "When there’s not many choices for employment, and the oil patch slows down, these prison jobs start looking real good."

The executive director of the Harris County MHMR Authority, Steven Schnee, has an effective op ed in the Houston Chronicle today declaring that the scope of mentally ill people in the Harris County jail foretells a coming crisis:

The Harris County Jail is now the largest mental health facility in Texas. Approximately 2,400 inmates a day are now diagnosed with a psychiatric illness that medically justifies the provision of psychiatric medications. There are almost as many psychiatrically ill inmates in the jail on psychiatric medications as there are patients in all of the Department of State Health Services hospital beds across the entire state.

Let that reality sink in.

How is this occurring? Several critical factors contribute to this disturbing trend. First, many individuals with a serious mental illness need early access to appropriate professional diagnosis and treatment and, often, supports to achieve and maintain stability in their psychiatric condition. These conditions aren’t, as a general rule, cured by medication. Stabilized, yes — cured, no. These individuals need education about the condition, available treatment options, impact on personal capabilities, stability and maintenance over time, etc. — all of which are made more difficult by the nature of these disorders affecting the information-processing organ of the body — the brain. These are neuro-chemical — disorders of the brain. And, if one throws into the mix that many untreated or undertreated folks with mental illness self-medicate with street substances, alcohol or both to ease the internal pain, one has a recipe for people recycling in and out of the criminal justice system because their behaviors run afoul of the law.

The discrepancy between the funded treatment capacity (8,500 per month) for only the three eligible diagnoses of schizophrenia, bipolar disorder and major depression (let alone all the other serious psychiatric conditions for which people end up in jail) is huge. A conservative estimate of the incidence/prevalence of these three diagnoses in Harris County is 170,000. ...

The risks to our society at multiple levels are huge. Economically, socially, to compete on the world stage, we can’t afford to continue the incredible loss and waste of human potential. And though the focus of this article is on the adult justice system, a similar reality is unfolding within the juvenile justice system.

Keep an eye on the jail — it is truly a barometer of the health of our community.

Saturday, June 27, 2009

It may just be an advertising gimmick to sell cars, but "clean graffiti" strikes me as a pretty clever idea. They just used a stencil and a "cleaning agent," probably bleach, and it can't be illegal (yet) to clean the sidewalk.

Prosecutors said Friday that Monica Conyers accepted two payments in late 2007 to support a city contract that would pay $47 million to Texas-based Synagro Technologies to recycle wastewater sludge and build a modern incinerator in Detroit. The council voted 5-4 to approve the deal, with Conyers supplying the decisive vote.

Federal authorities say the cash-strapped Dallas school district has agreed to financial penalties to settle claims that it abused a government program that provides Internet access to lower-income schools.

The settlement announced Friday requires the district to abandon more than $150 million in requests for federal funding and pay $750,000. The district faces a $30 million budget shortfall.

The Justice Department and the U.S. Attorney's Office in Dallas say the school district engaged in noncompetitive bidding practices and accepted improper gifts from vendors, including free use of a yacht.

Yikes! Losing $150 million in stimulus money is a damn harsh penalty for the school district. Meanwhile, it looks like the couple accused of bribing state Rep. Terri Hodge and a host of other Dallas officials may have cut a deal with prosecutors. If so, that will certainly put the squeeze on the remaining defendants in the Dallas city hall corruption case scheduled to run for the next six to eight weeks.

Finally, in El Paso the distict clerk has been indicted for bribery; prosecutors say he accepted cash and a trip to Vegas from a local attorney allegedly "to rig bid specifications on a proposed $53 million county contract." One of his employees, a county commissioner, and the former chief of staff for the county judge have already taken plea deals as a result of the FBI investigation.

Obviously those who've not pled or been convicted must continue to receive the benefit of a presumption of innocence, but there's a lot of smoke here for there not to be some fire and on its face these problems seem awfully widespread.

Seriously, this would be a great niche blog topic. I'm pretty full up with my own self-assigned beat, but I'd sure like to see some energetic blogger take up the mantle.

The problem of prison rape has been widely discussed and decried, but a major new report (pdf) almost six years in the making by the National Prison Rape Elimination Commission says the problem can also occur in community corrections settings, mostly as a function of coercion by probation and parole officers:

As in other correctional settings, courts have found that sexual abuse in community corrections violates the Eighth Amendment of the U.S. Constitution prohibiting cruel and unusual punishment. As a result, community corrections agencies, like prisons and jails, have a special responsibility to protect the people they supervise. Courts also have determined that the authority staff have over the individuals they monitor makes a truly consensual sexual relationship impossible. Community corrections agencies are accountable for sexual abuse incidents, regardless of whether the circumstances in which the abuse occurred were under the direct control of the agency or a separate organization working under contract with the agency. Anyone in a supervisory position can be held liable for abuse. For example, in Smith v. Cochran, Pamela Smith was in jail but participating in a work release program. Her supervisor on the job sexually assaulted her, and the court ruled that important “penological responsibilities” had been delegated to him.

Although individuals under correctional supervision in the community may experience sexual abuse at the hands of other supervisees, the dynamics of supervision make them particularly vulnerable to abuse by staff. Coercion and threats carry great weight because individuals under supervision are typically desperate to avoid being incarcerated. Staff also have virtually unlimited access to the individuals they supervise, sometimes in private and intimate settings. In Ramsey County, Minnesota, for example, a male community corrections officer visiting a former prisoner’s apartment to discuss her failure in a drug treatment program instead requested and had sex with her.

The report notably also called for more research into the issue of rape among the ever-growing number of immigration detainees:

In the 15 years from 1994 to 2009, the number of immigrants held in detention pending a judicial decision about their legal right to remain in the United States increased nearly 400 percent. For the 2009 fiscal year, ICE has budgeted enough money to detain 33,400 people on any given night and more than 400,000 people over the course of the year. The population of immigration detainees includes adults, thousands of “unaccompanied” children, and whole families confined together.

The prevalence of sexual abuse among immigration detainees is unknown and has yet to receive the attention and research it merits, but accounts of abuse by other detainees and staff have been coming to light for more than 20 years. Many factors—personal and circumstantial, alone or in combination—make immigration detainees especially vulnerable to sexual abuse. One of the most pervasive factors is social isolation. Individuals are often confined far from family or friends and may not speak the language of other detainees or staff. Those who have already suffered terrifying experiences in their home countries or in the United States can be almost defenseless by the time they are detained and may even expect to be abused.

I must admit I'd never considered those particular aspects of the issue, but I'm glad the commission did.

Meanwhile, thanks to the Prison Rape Elimination Act, we've recently gotten the first estimates of national prevalence rates for in-custody rape: In large national survey, according to the report, about 4.5% of inmates US prisons and 3.2% in local jails said they'd been victims of sexual assault while incarcerated within the prior 12 months. "Approximately 20 percent of all victims said that they had been physically injured during the course of the abuse." In jails, in particular, some categories of inmates were much more likely to be abused:

Women were more likely than men to be sexually victimized (5 percent compared with 3 percent). Rates were higher among younger inmates: 4.6 percent among respondents 18 to 24 years old, compared with 2.4 percent among respondents 25 years and older. Nearly a fifth (18.5 percent) of inmates who identified as homosexual and 9.8 percent who identified as bisexual or “other orientation” reported being sexually victimized, compared with 2.7 percent of heterosexual inmates. ...

Youth confined with adults also are at high risk of sexual abuse. In 2005, for example, individuals under the age of 18 made up less than 1 percent of all inmates in U.S. jails.64 Yet 21 percent of all victims of substantiated incidents of sexual abuse involving jail inmates that year were under the age of 18

California's forensic labs face an astonishing development as a result of that state's massive budget shortfall: The Los Angeles Sheriff has already halted the practice of sending rape kits out for DNA testing because the department has no money, plus, state crime labs are scheduled to have their budgets cut by half, forcing them to begin charging smaller jurisdictions for services like DNA and other forensic testing that they previously provided for free (as is the case with Texas' state crime labs). According to this item at The Huffington Post, "Last year, the state lab tested evidence in about 50,000 cases, including more than 1,400 containing DNA." Indeed,

Hundreds of police departments and district attorneys' offices in 47 of the state's 58 counties currently rely on the state lab to test their crime scene evidence. The other 11 counties, mostly concentrated in the Los Angeles and San Francisco areas, have their own labs to test forensic evidence.

But many law enforcement agencies in small or rural counties doubt they'll be able to afford the new charges, which are likely to run about $215 an hour. If the agencies can't pay, the lab will have to close some of its branches and lay off some of its scientists, said Jill Spriggs, the lab's bureau chief.

The agencies also could be forced to shelve thousands of DNA samples, bullet casings and other pieces of evidence used to identify violent criminals. There are already more than 350,000 untested DNA samples nationwide, according to federal government statistics.

Ultimately, some police chiefs said they might have to choose: pay to process evidence, or lose more cops on the streets. More than 1,000 police officers were eliminated statewide in the past year. ...

The proposed cut could go into effect between July 1 and Jan. 1, she said. It's unclear if it would be permanent.

When I first saw the story of the LA Sheriff's decision, I wondered if this was a tactical move - threatening to eliminate a popular and needed function in order to sway public opinion in favor of keeping less defensible parts of his budget. But the cuts to statewide crime labs are a serious proposal in the state legislative budget, which escalates the dilemma to a new level.

I still think, though, that there's a bit of budgetary gamesmanship going on regarding how these issues are portrayed by the media and public officials. Much of the volume for crime lab work isn't for DNA testing but for drug cases, but it's money for processing rape kits getting cut first? That makes little public safety sense. If you're forced to prioritize, surely that function would be a lot farther down the budget cut list?

Friday, June 26, 2009

A federal jury in Houston yesterday awarded George Rodriguez a $5 million verdict based on misconduct at the Houston crime lab that caused his false conviction. Said the Houston Chronicle:

George Rodriguez, 48, gained his freedom in 2004 after DNA tests discredited the findings of the troubled Houston Police Department crime lab on his case. By that time, he had served nearly two decades in prison. His father had died. His daughters faced abuse from men their mother lived with.

“Ain’t no amount of money is going to even my scale,” Rodriguez said after hearing the verdict. “I lost my dad and my girls have been through hell. I am grateful, but no money could replace what I lost.”

I find it hard to disagree with this interpretation of the jury's message:

“This verdict says what I think we all know to be true about the Houston Police Department crime lab,” said Barry Scheck, one of Rodriguez’s lawyers and a co-founder of the Innocence Project, which helped secure his release from prison. “They convicted innocent men and the city was indifferent.”

The Texas Legislature this year approved and the Governor signed into law an expanded compensation package for innocent people who've been falsely convicted (HB 1736 by Anchia/Ellis), a bill I lobbied for on behalf of the Innocence Project of Texas. But those affected must choose whether to accept the state compensation or sue, as Rodriguez did.

Under the new statute, Rodriguez would have been awarded $80,000 per year incarcerated (about $1.36 million) plus a like amount stretched out over a lifetime annuity, totaling a little over half the amount the jury awarded. But Rodriguez won't get paid yet and there's a significant chance the size of the verdict could be reduced by the Fifth Circuit on appeal.

The Legislature increased the amount because previously it was so low ($50k flat per year incarcerated, no annuity) that nearly all the innocent men getting out of prison chose to sue instead of accept the statutory compensation. Judging by the verdict in the Rodriguez case, the state has now increased the amount to where it's competitive, if not equal, with the amount they might receive in court.

A common theme on this blog is that divisions on criminal justice issues - despite common stereotyping - don't typically fall along partisan or traditional ideological lines. The typical culture war debates that dominate American politics simply don't cut the same way when it comes to issues of crime and punishment.

Look at the breakdown of the 5-4 vote: Justices Ginsburg, Stevens and Souter joined the two self-styled "originalists" on the court, Scalia and Thomas, while the opposition saw the conservative Alito and Chief Justice Roberts siding with Justice Breyer, who is normally considered a "liberal," and Justice Kennedy, who authored the dissent, normally considered the "swing vote" on the court, though not in this case.

(I have to wonder if Kennedy's usual swing vote status contributed to his over-the-top hysterical dissent in Melendez-Diaz? It almost seems like he's so used to his vote deciding cases, he was furious not to find himself in the majority and expressed his dissatisfaction through hyperbole.)

The divide on this vote was not liberal or conservative. Instead, the split would be better described as between "constitutionalists" and "pragmatists." The Confrontation Clause is clear on its face that an opportunity for cross-examination is required of witnesses against the defendant, and it's a HUGE stretch to claim that someone providing information to prove an element of a crime in court is not a "witness." (Scalia obliterated Kennedy's lame arguments on that score, IMO.) But the four justices in the minority thought it would be too burdensome to require compliance with the Constitution, while Scalia said that "The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience."

Quite frankly, I fear that if President Obama's nominee, Judge Sonia Sotomayor, had already replaced David Souter, the Melendez-Diaz decision would have likely gone the other way.

This plague of "pragmatism" on the court has virtually obliterated the Fourth Amendment restrictions on warrantless searches and seizures, with SCOTUS near-constantly finding excuses to justify searches that don't comply with the clear language of the Constitution. At traffic stops, in particular, the Fourth Amendment has become nearly a dead letter.

Similarly, in their big Fourth Amendment case yesterday on strip searching in schools, the Justices were able to achieve an 8-vote majority only by issuing an opinion that's virtually worthless for its precedential value. A commenter over at Sentencing Law & Policy wondered, "Is the message that the 4th Amendment is a facts and circumstances question, rather than a clean cut set of doctrines?" IMO that's exactly the message, and it's the same one the court's been sending on the Fourth Amendment for the last 25 years or so.

Bottom line: Respect for the Constitution isn't a liberal or conservative issue. Nor is it a universal value revered by the nation's judges, too many of whom find their loyalties lie closer to the pragmatic needs of the state's law enforcement apparatus than to the principles in the nation's founding document.

County jails all over the country have many of the same problems, and in Salt Lake City they're considering copying an approach tried in San Antonio to divert nonviolent and mentally ill offenders from the jail. Reports the Salt Lake City Tribune ("Thinking outside the cellblock," June 25):

Utah's most-populous county is straining under the inmate crush. The sheriff releases hundreds every month from the 2,000-capacity Adult Detention Center because of overcrowding and now is prepping a second jail, Oxbow, for operation. But even with the new beds, Sheriff Jim Winder concedes more jails offer only a short-term remedy.

"You can't build your way out of this problem," he says.

So the county is contemplating an innovation that would provide a "door No. 2" for nonviolent offenders suspected of substance abuse or mental illness who get nabbed on minor offenses such as disorderly conduct or petty theft.

Instead of putting them behind bars, police could send those wrongdoers to a "receiving center" that would assess their situation and recommend treatment, offering them a better shot at rehabilitation.

Criminal-justice experts see this corrections triage as the next big step for this valley of more than 1 million people, potentially reducing the population of drug abusers and mentally ill offenders who comprise more than 70 percent of the county's inmates.

"We need to turn off the spigot on the front end," says Pat Fleming, who oversees the county's substance-abuse division. "It's like a massive fire hose right now. People are just getting spewed out." ...

County officials see a receiving center -- ideally next to the jail in South Salt Lake -- doing more of the same for other nonviolent offenders, steering them away from a jail cell and into community-based mental-health counseling or substance-abuse programs.

The approach has worked in Bexar County, Texas, where officials avoided building a 1,000-bed jail by centralizing services in a Crisis Care Center. The complex now diverts 800 people a month from the jail, providing basic medical care, psychiatric screenings, detox and community treatment connections.

"We are freeing up space for violent offenders," says Leon Evans, president and CEO of the Center for Health Care Services in Bexar County. "It is the right thing to do."

A similar center took root in Orange County, Fla., freeing up 54,000 days of jail beds last year.

"You're paying a huge amount of money to incapacitate nonviolent, nonthreatening, usually nonconvicted people in your county jail," says Don Bjoring, who played a key role in launching the center. "If that's the policy, fine. ... Just remember, you're paying for it."

See also these related stories from the Tribune about Salt Lake's overcrowded local jail:

The US Supreme Court today issued a new ruling in Melendez-Diaz v. Massachussetts that affidavits documenting the result of forensic testing were subject to the Confrontation Clause in the Sixth Amendment of the US Constitution, meaning the lab analysts must be made available for cross-examination in court.

Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune fromthe risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing foren-sic evidence] are administered by law enforcement agen-cies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthen-ing Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, theysometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” Id., at S–17. A forensic analyst responding to a request from a law enforcementofficial may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.

What's more, wrote Scalia:

Like the eyewitness who has fabricated hisaccount to the police, the analyst who provides false re-sults may, under oath in open court, reconsider his false testimony. See Coy v. Iowa, 487 U. S. 1012, 1019 (1988). And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.

Texans know for a fact, of course, that such fabrications sometimes take place, so insisting upon a confrontation requirement establishes an important new protection against such abuses. It should be mentioned, though, that in footnote 6 Scalia makes clear the NAS report was not the main factor spurring this decision:

Contrary to the dissent’s suggestion, post, at 23, we do not “rel[y] in such great measure” on the deficiencies of crime-lab analysts shown by this report to resolve the constitutional question presented in this case. The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa. We discuss the report only to refute the suggestion that this category of evidence is uniquely reliable and that cross-examination of the analysts would be an empty formalism.

As for the idea that requiring testimony by lab analysts would be too burdensome on the prosecution, Scalia thinks the concern is overstated but in any event told the complainers to suck it up:

respondent asks us to relax the requirements ofthe Confrontation Clause to accommodate the “‘necessities of trial and the adversary process.’” Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.

Hear, hear! I wish we saw more such strict constructionism in SCOTUS rulings on Fourth Amendment cases.

Those interested can also read the oral argument transcript here (pdf), and check out the Scotuswiki page on the case.

Particularly notable was the makeup of the 5-justice majority: Scalia and Clarence Thomas are widely considered among the most conservative members of the court, but they sided with Justices Ginsburg, Stevens and Souter, normally considered the court's "liberal" wing, in order to reach today's decision. Justice Kennedy authored a rather alarmist dissent, but given the NAS report, his confidence in the "increasing reliability of scientific testing" seems absurdly misplaced. Thank heavens these unlikely allies were able to come together to help keep forensic testers honest.

UPDATE: Check out the discussion of this ruling on the Texas District and County Attorneys Association user forum. Their lobbyist Shannon Edmonds notes that Scalia specifically said "that certificates of analysis under [Texas'] CCP Art. 38.41 pass muster" because the defense can still confront the witness if they announce they plan to do so before trial. Under the Texas statute, such a "certificate is not admissible under Section 1 if, not later than the 10th day before the trial begins, the opposing party files a written objection to the use of the certificate with the clerk of the court and provides a copy of the objection by fax, hand delivery, or certified mail, return receipt requested, to the offering party."

Also notable on the TDCAA user forum was Williamson DA John Bradley's underwhelmed response to the decision and critique of Kennedy's minority opinion:

Texas has largely taken the approach adopted by the majority and has not seen any serious negative consequences. I was surprised to learn that so many States, even after Crawford, thought that cross-examination of an expert witness who held key information on proof of an element of the offense, could be skipped by defining that witness' information as nontestimonial.

My initial reaction is that the dissent is overreacting. However, I do think it is irrelevant to constitutional analysis to consider how many cases are plea bargained before deciding whether the Confrontation Clause applies. That's a slippery slope.

And, I didn't think the statistics provided on how many analysts would have to appear and testify was all that shocking. Texas being a big place, we have been dealing with much bigger numbers with little or no problem.

Big news yesterday in Austin's Yogurt Shop murder case. Reports AP, "Two men awaiting retrial in the 1991 murders of four teenage girls at an Austin yogurt shop were released from jail Wednesday while prosecutors search for a match to new DNA evidence that didn't come from either of them."

The Travis DA now says there was a "fifth man" involved - what one courthouse wag called an "unindicted co-ejaculator" - someone who was never mentioned in the supposed confessions or the prosecution's theory of the case.

More than 50 other people falsely confessed to the crimes in addition to the suspects and no evidence links the pair to the offense besides their confessions.

AP says "Prosecutors insist the DNA does not exonerate [Michael Scott and Robert Springsteen] as suspects and both still face capital murder charges." But IMO it's time for DA Rosemary Lehmberg to chow down on a super-sized helping of crow and give up on these cases: Either the recanted confessions were true or they're not. Prosecutors can't claim some self incriminating parts were true but not Springsteen's now disproven rape confession or key details like who was with them. They don't get to have it both ways.

Now that Travis prosecutors have DNA from the actual perpetrator, that's who they need to be pursuing.

It's good news for death row inmate Charles Raby - and more bad news for Joseph Chu.

The former Houston crime lab analyst has taken a beating in the Michael Bromwich reports, which determined that, among other things, the lab had manipulated results to help with convictions. And it seems that in the case of Raby, who was convicted in 1994 of brutally murdering a grandmother, Chu did exactly that.

The report came in last week. In her conclusion, Patricia P. Hamby, the outside expert, states that Chu's "inconclusive" reporting "is contrary to and not supported by the recorded laboratory test results for the left and right fingernail samples."

In other words, Chu lied about the lab results.

Reporting that evidence excluding a defendant was "inconclusive" is the kind of thing that happens when a "team spirit" mentality overtakes forensic workers and they come to consider themselves more as cops than scientists. Even if Raby is truly guilty (and I have no specific knowledge of the case), that doesn't excuse authorities employing what amounts to perjurious testimony (the false lab report) to convict him.

The Houston crime lab debacle puts the lie to the notion that lab workers' conclusions don't require cross-examination. Chu's reported results in this case were not objective scientific analyses but skewed misrepresentations designed to help secure a conviction. It's hard to see how any fair-minded jurist would find that justice is fairly served by assuming such conclusions are true without subjecting them to the adversarial process.

Mostly due to a bit of post-session blog and politics fatigue, I've not been closely monitoring the ongoing civil rights trial in Houston over an egregious innocence case out of that city's troubled crime lab.

Arguably the City of Houston would have been wise to settle its lawsuit with George Rodriguez - an innocent man who spent 17 years in prison because a lab worker apparently lied at his trial to secure a conviction - after Judge Vanessa Gilmore denied the city's motion for summary judgment. But the city insisted on rolling the dice, so yesterday a jury heard final arguments in which the plaintiff requested $35 million, while attorneys for the city asked the jury to give the defendant nothing. We'll learn the verdict soon, one would imagine.

Tuesday, June 23, 2009

Rex Thomas, a writer out of Florida, has an excellent piece out on the relationship between street art and civic spaces, arguing that failure to bring graffiti into the mainstream postpones "treatment of the urban malaise." I was particularly taken by Thomas' discussion of "permission walls" and his analysis placing graffiti in context with more traditional, accepted art forms:

In Orlando, the trend of giving street artists “permission walls,” or walls where they have permission to paint their work, has tamed some of the sabotage. By allowing graffiti artists to work with permission, they are free to develop their craft without fear of getting caught before completion, and the artwork becomes a colorful, mural-sized effort to which the artists can point with pride. These permission walls encourage friendly competition between teams, or crews, and there is a sense of pride among them for having created something with great exposure.

Two permission walls exist to the east of downtown, but it is the cluster of warehouses at 630 E. Central that showcase graffiti artwork at its best. Artist Robin Van Arsdol owns part of this cluster and has been sponsoring an international graffiti conference for several years, bringing in artists from Europe, the Caribbean, and North America for a weekend of painting at his studios. Driving by his property is a study in converting urban form into art, and perhaps suggests the urban future of more than one city.

For the graffiti artists have offered a philosophical change-up that should not be overlooked. The conversation about postmodern art seemed to have reached a dead end some time ago; artists first threw out figure, then form, then color, then the frame, and then wandered into their process itself as an art form. Graffiti artists begin with the end: their signature, or tag, becomes the art, and by using this as the starting point, and the city as their canvas, they unconsciously offer a new beginning to think about the relationship between art and the city.

We must accept the challenge that graffiti artists offer us; we must confront this takeover of the physical urban form and push back. While street art is a fresh, interesting language, it should not be mistaken for the language of knowledge or power. Instead it is the language of a city that is weak and divided. We must hear what graffiti says to us as a society, and retake our physical urban character as a common, broad place that offers security, sacred, and special places for all citizens, not just the privileged few who, by choice, enter the physical realm. By ignoring graffiti art, we postpone our treatment of the urban malaise. By confronting it and bringing it into the mainstream, we can better treat our urban condition and improve the city as a dwelling place for the benefit of all.

Monday, June 22, 2009

So-called "shaken baby syndrome" is another area where it increasingly appears that flawed forensic testimony helped secure numerous false convictions over the years, particularly among parents and child care workers: According to an essay by Maurice Possley at The Crime Report:

A soon-to-be-published analysisof shaken baby cases and recent developments in the medical community by University of Maine School of Law professor Deborah Tuerkheimerpresents persuasive evidence and raises troubling questions about whether many of these convictions were of innocent people who were found guilty on the basis of faulty science. The analysis is scheduled to be published in September by Washington University Law Review.

Tuerkheimer, who is joining the DePaul University College of Law facultyon July 1, points to new research in the United States and abroad showing that a variety of circumstances, including something as seemingly innocuous as falls from a short height, can cause fatal head injuries that appear very similar to injuries routinely diagnosed as SBS.

If research shows that the physical conditions that once automatically resulted in a prosecution could actually have been the result of an accident, the implications are enormous.

“Given the scientific developments…we may surmise that a sizeable portion of the universe of defendants convicted ofSBS-based crimes is, in all likelihood, factually innocent,” Tuerkheimer writes, adding that a far greater number of defendants among the group were likely convicted on legally insufficient evidence.

“While we cannot know how many convictions are ‘unsafe’ without systematic case review, a comparison of the problematic category of SBS convictions to DNA and other mass exonerations to date reveals that this injustice is commensurate with any yet seen in the criminal justice arena,” Tuerkheimer writes.

Keith Findley, a clinical professor of law and co-director of the Wisconsin Innocence Project, who headed Audrey Edmunds legal team, said, “The system is sending people to prison based on findings of beyond a reasonable doubt when in many of the cases the only evidence is medical evidence on which many medical experts…have a substantial doubt.”

He added, “This is not about being opposed to child abuse prosecutions. No critic of SBS theory wants anyone to get away with child abuse, but when the diagnosis becomes the entire basis for the prosecution, that’s problematic.”

Read the full story for more detail on why such testimony has come under fire. Convictions are still being obtained based on this forensic theory even though “there is no consensus among medical professionals as to whether the symptoms that have traditionally been attributed to SBS are necessarily indicative of intentional shaking.”

Like arson, this is a crime for which people can be convicted based solely on "expert" forensic testimony. But the underlying tenets of "shaken baby syndrome," which have been relied upon in court for many years, have now been widely disputed by credible, scientific research:

Dr. Bruce Gross, a Fellow of the American College of Forensic Examiners, writing earlier this year in The Forensic Examiner, noted that studies have called into question the SBS triad as the result of only violent shaking. “The prevailing notion is that the injuries ‘characteristic’ of SBS are equivalent to those seen in a 35 mph automobile accident in which the infant victim was unrestrained, or a fall from a two –story building. Yet, research (including biomechanical analysis) has shown that, although fortunately not the norm, infants and toddlers can and do die from falls as short as 1-4 feet.”

Gross added, “In brief, biomechanical research suggests that basing the diagnosis of SBS only on the presence of the triad of symptoms [retinal hemorrhage, bleeding in the brain and brain swelling] lacks scientific certainty.”

Last year I got to hear a presentation about some of the biomechanical simulations that appear to undermine the traditional shaken baby diagnosis. Bottom line: the symptoms that supposedly characterize SBS could also have been explained by accidents or birth defects, but doctors instead testified it could only have happened through malicious shaking. These conclusions were based on speculative theories that, by their original authors' own admission, relied on circumstantial guesswork rather than experimentation and proof. Today more experimentation has been done and the original SBS theorizing would never hold up to peer-reviewed scrutiny. But the power of precedent continues to give such theories a foothold in the courtroom.

When you think about it, the death of a baby is already such a terrible event, how much more would it compound the tragedy to then falsely accuse a parent or child care worker of homicide? But to judge by the latest research, that appears to be exactly what's happened in many of these cases since the diagnosis was first popularized in the '70s.

The shaken baby cases provide further evidence, if more were needed, that innocent people can be convicted in many more circumstances than just those where DNA is available to definitively exonerate a defendant.

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